Pate v. McConnell

| Ala. | Nov 15, 1894

BRIOKELL, C. J.

— Whether there was technical error in sustaining any- or all the causes of demurrer which were assigned to all the counts of the complaint except the first, it is not now material to consider. On the trial on that count, it is apparent the plaintiffs had the full benefit of all matters which could have been. available under the other counts ; and if there be error in sustaining the demurrers, it is error without injury.

The plaintiffs seek a recovery back of nine hundred and twenty dollars, which they had paid the defendant and his partners or associates, as part of the purchase money of a lot or parcel of land, which they covenanted to convey in fee simple to the plaintiffs, by deed with general warranty, on the full payment of the purchase money. The entire purchase money was twelve hundred dollars, of which six hundred dollars was paid at the time of the purchase, on the execution of the covenant, and the remainder was payable in two equal annual instalments with interest. It is not matter of controversy, that the covenant of the defendant was dependent, and before he could be put in default for nonperformance, the plaintiffs must have paid, or tendered payment of the entire purchase money, and, according to the rule which has long prevailed in this State, must have prepared and offered for execution a conveyance in terms conforming with the covenant. — 1 Brick. Dig. 311, § 69. The inability of the defendant or his associates, at the time appointed for making title, to make title as covenanted, under some circumstances, would have relieved the plaintiffs from the duty of tendering payment of the purchase money, and a conveyance for execution. When performance of a contract is impossible, or the party to be charged has disabled himself from performance, a demand of performance would be vain and useless. But it is quite an error to suppose, when parties stand in the relation of vendor and vendee of real estate, that under- any and all circumstances, a mere defect in the title of the vendor, or a mere inability at the time appointed to make such title as he had promised or covenanted, will relieve the vendee from the duty of tendering payment of the purchase money, and demanding a conveyance. In Hartley v. James, 50 N.Y. 38" court="NY" date_filed="1872-06-20" href="https://app.midpage.ai/document/hartley-v--james-3589445?utm_source=webapp" opinion_id="3589445">50 N. Y. 38-40, it is said : “These defects of title in the vendor and a present inability to give such a title as the contracts calls for, may not in all cases, and under all circumstances, dispense with a tender of payment and a demand of a conveyance by the vendee, in order to entitle the latter to maintain an action for the money already paid, or to defend an action for the purchase money, if the payment becomes due before a deed is to be given by the terms of the contract. Under some circumstances, the court will not hold a contract void by reason of the inability of the seller to make a perfect title, but will put the purchaser to a tender of payment and a demand of the deed, to the end that the seller may make his title good.” The observation is peculiarly applicable to the facts of this case. It is probable, if not certain,.that there was no period of time after the purchase money became due, during which, if the plaintiffs had tendered payment, the vendors could not have freed 'their title from its infirmity, and made the plaintiffs a good title conforming to the covenant. However this may be, the evidence is clear and convincing, that at and prior to the commencement of this suit, by a tender of Dayment, the plaintiffs could and would have obtained a title conforming to the covenant. It was immaterial that the plaintiffs were not formally notified of the readiness and ability of the vendors to perform. There was no duty resting on the vendors to give such notice — the duty was on the plaintiffs, if they desired performance of the covenant, or if they intended to place the vendors in default for non-performance, to tender performance of the act on which the obligation and duty óf the vendors to perform depended. The plaintiffs failed to make a case entitling them to a recovery back of the purchase money they had paid, and the city court properly rendered judgment against them.

Affirmed.